August 28, 2017

Likely the final chapter has been closed on the fee battle in the case which produced the U.S. Supreme Court’s decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749, 1756, 1758 (2014), defining the flexibility given district judges to decide whether a patent case is exceptional for purposes of a fee award under 35 U.S.C. § 285. What happened below is the district judge awarded over $1.6 million in fees to the defense after finding the case to be “weak.” The Federal Circuit affirmed late last week in ICON Health & Fitness, Inc. v. Octane Fitness, LLC, Nos. 2016-1047 & -1101 (Fed. Cir. Aug. 25, 2017) (nonprecedential).